New Law Helps Bankers Fight Exploitation of Vulnerable Adults

The Washington Department of Social and Health Services received 17,586 reports of vulnerable adult abuse in 2010. Twenty-six percent of those reports were about financial exploitation.

Obesity and Building Design

As the U.S. population’s obesity rates rise, what should builders and developers do to comfortably accommodate this population?

Governor Signs New Law Allowing Nursing Homes to Employ Physicians in Washington

Nursing homes in Washington will, for the first time, be allowed to directly employ staff physicians as a result of a bill that Governor Christine Gregoire signed last week.

The new law, drafted with the assistance of Lane Powell, creates an exception to what is known as the “corporate practice of medicine” doctrine – a doctrine that generally prohibits physicians (and other professionals) from being employed by non-professional corporations. The prohibition is rooted in a longstanding principle that professionals should not be focused on corporate profits or subject to control by nonprofessionals. Historically, this has forced most Washington physicians to practice solely as part of physician-owned companies, and accordingly, nursing homes have provided medical services to their residents only through outside independent physicians.

New Obstacles to Arbitration — While Arbitration Agreements Remain Alive and Well in the Health Care Setting, the Scope of their Enforceability Changed in 2010

While arbitration agreements remain alive and well in the health care setting, the scope of their enforceability changed in 2010. It is common practice in long term care and other health care facilities for a resident or a resident’s family member to sign an arbitration agreement upon admission. Such agreements require the resident to arbitrate any dispute that may arise out of his or her stay or care received at the facility. Arbitration agreements have proven to be a cost-effective and efficient method for resolving disputes.

Long Term Care Facilities May Face Increased Affirmative Action Enforcement by DOL

The Department of Labor’s (“DOL’s”) Office of Federal Contract Compliance Programs is taking a closer look at long term care facilities (in fact, all facilities that provide medical services) to ensure compliance with Executive Orders and other equal employment opportunity laws that govern federal procurement.

90 Day Pre-Suit Notice for Professional Negligence Claims Ruled Unconstitutional by Washington Supreme Court

In yet another recent set-back to health care providers, the Washington Supreme Court ruled last week that RCW 7.70.100(1), which requires that a 90 day pre-suit notice be provided prior to filing professional negligence lawsuits against health care providers, irreconcilably conflicts with Court Rule 3(a) and is thus an unconstitutional violation of the separation of powers doctrine.

Washington Court of Appeals Holds That Wrongful Death Claims Are Not Subject to Arbitration Agreement

A Washington Court of Appeals ruled that the wrongful death claims brought by the heirs of a nursing home resident were not subject to binding arbitration. In a significant set-back to advocates of negotiated arbitration between long term care providers and their residents, the Court held that an arbitration agreement between a resident and a long term care facility is not binding on wrongful death beneficiaries unless the beneficiaries also sign the agreement.

Avoiding Marketing Pitfalls That Could Bring Litigation to Your Doorstep

Most providers of senior housing and assisted-living services market their communities in many ways; through written materials, web-based advertisements, testimonials, and broad-based advertisements, to name just a few. Once created, an operator cannot control these materials’ circulation. The materials create a look, feel and impression of a community, and sometimes they can make implicit promises of results. These materials can create exposure for an operator. The following discussion will identify areas of legal exposure and offer suggestions to mitigate your risk by working with your marketing team toward a mutual goal of accurately communicating what you provide to your residents, setting reasonable expectations for the residents, and mitigating risk.

Plaintiffs Cannot Recover Compensatory or Punitive Damages for Federal Disability Retaliation Claims … at Least for Now

The Ninth Circuit Court of Appeals recently issued an employer-friendly decision in Alvarado v. Cajun Operating Company. The appellate court ruled that, based upon the plain language of the Americans with Disabilities Act (“ADA”), compensatory (i.e., emotional distress) and punitive damages are not available to plaintiffs claiming retaliation under the ADA. Instead, only so-called “equitable remedies,” such as reinstatement, back pay or front pay, are available to persons claiming retaliation under the ADA. Because remedies for retaliation under the ADA are strictly equitable in nature, the Ninth Circuit also ruled that plaintiffs making such claims are not entitled to a trial by jury.

OSHA Issues H1N1 Compliance Directive for Healthcare Workers

On November 20, 2009, the Occupational Safety & Health Administration (“OSHA”) issued a Directive relating to healthcare workers’ occupational exposure risks to the H1N1 flu virus. The Directive is in the form of Instructions to OSHA Compliance Safety and Health Officers (“Compliance Officers”) and its applicability is limited to the inspection of workplaces where workers are likely to have “high” to “very high” occupational exposure risks. Workers at “high” and “very high” occupational exposure risk to the H1N1 flu virus include workers who, through close contact (within six feet), attend to patients with suspected or confirmed H1N1 flu virus, or who transport such patients in enclosed vehicles. The Directive provides that inspections of such workplaces will be conducted in response to worker complaints, referrals (including media referrals), or as part of a fatality and/or catastrophic event investigation.

Washington Supreme Court Issues Ruling on Certificate of Merit and Continues to Preclude CPA Claims in Professional Liability Cases

The Washington Supreme Court has recently issued two significant rulings impacting the Long Term Care and Seniors Housing industry.

Preparing for and Responding to Issues Relating to Flu Season and Specific Considerations Regarding the H1N1 Influenza Virus

On October 9, 2009, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic preparedness technical assistance document. This update is just another reminder that flu season is here. The EEOC update follows on the heels of the Secretary of Homeland Security’s issuance of a preparedness guide for businesses, specifically regarding the H1N1 influenza, and similar information provided by the World Health Organization (“WHO”). The Centers for Disease Control and Prevention (“CDC”) has also issued interim guidance on infection control measures. As the sheer volume of information about the coming flu season can be daunting, the following highlights particular concerns of these agencies as applies to businesses and provides practical tips for employers in preparing for and responding to the influenza virus.

Oregon Expands Religious Accommodation Rights at Work

On July 16, 2009, Oregon Gov. Ted Kulongoski signed into law the Oregon Workplace Religious Freedom Act (“OWRFA”). The new statute takes effect on January 1, 2010.

OWRFA expands existing protections against discrimination based on religion in the workplace by requiring employers to reasonably accommodate an employee’s use of leave time for engaging in religious observance or practices. OWRFA also prohibits employers from instituting occupational requirements that restrict employees from wearing religious clothing, from taking time off for holy days, or from participating in a religious observance or practice. The OWRFA contains only one occupation-specific exception: Public school teachers will be prohibited from wearing religious dress while “engaged in the performance of duties as a teacher.”

View full article (PDF).

Landlord Can’t Exclude Folks Who Need a Little Help

Demand for adequate senior housing continues to expand. The Joint Center for Housing Studies estimated that in 2000, the 65 and older population was approximately 35 million, or 12.4 percent of the population. The age group will surge to 69.4 million by 2030, expanding the senior population to more than 20 percent of the total. View full article (PDF).

This article first appeared in the Puget Sound Business Journal.

Lane Powell Helps WHCA Win Significant Victory in Federal Court Challenge to Washington Boarding Home Law

On January 14, 2009, the United States District Court for the Western District of Washington struck down portions of RCW 18.20.440 as unconstitutional in Washington Health Care Association v. Robin Arnold-Williams, et al., No. 3:08-cv-05427-RJB. As a result of this ruling, any boarding home with a Medicaid contract signed before March 28, 2008 who wants to avoid the Medicaid “lock in” provisions of RCW 18.20.440 should either terminate their current Medicaid contract or refuse to renew the contract when it expires. View full article (PDF).

Demand for Assisted Living Remains Strong in Spite of Weakening Economy

While the residential housing market has certainly felt the strain of the recent mortgage industry failures, credit crunch and general real estate malaise, the assisted living housing segment has proven particularly resilient even in these difficult times. As the population of skilled nursing residents declines, assisted living is being recognized as part of a national policy to address the care needs of our aging population. It is a market segment typically premised on immediate housing (and care) needs, where the consumer cannot afford to wait out current market conditions in the hopes of realizing maximum value from the sale of the primary residence. View full article (PDF).

This article first appeared in Washington CEO magazine.

Legislation Affecting Boarding Home Providers’ Ability to Withdraw from Medicaid Program Passed by Legislature

On Wednesday, March 12, 2008, Washington House Speaker Frank Chopp signed Substitute Senate Bill 6807 which affects boarding home providers’ ability to withdraw from the Medicaid program. The legislation had been approved by both houses of the legislature earlier this week. The bill has now been sent to Gov. Christine Gregoire for signature. View full article (PDF).

OIG and HCCA Issue Government-Industry Roundtable Report – “Driving for Quality in Long-Term Care: A Board of Directors Dashboard”

On January 31, 2008, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) and the Health Care Compliance Association (“HCCA”) released a report entitled, “Driving for Quality in Long-Term Care: A Board of Directors Dashboard.” The OIG’s focus is preserving governmental health programs and operations by “protecting them against fraud, waste, and abuse” through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG issues a report involving the long-term care industry, facilities should take notice. View full article (PDF).

Feeding Assistant Regulations Upheld by Ninth Circuit Court of Appeals

On Friday, August 31, the Ninth Circuit Court of Appeals rejected a challenge to the CMS Feeding Assistant Regulations. The regulations allow States to permit skilled nursing facilities to use trained personnel to assist in feeding residents lacking complicated feeding needs. View full article (PDF).

Less Freedom for Employers to Contract: The Oregon Legislature Toughens Laws on Noncompete Agreements

On August 6, Governor Ted Kulongoski signed Senate Bill 248 into law, making more onerous the requirements for a valid noncompetition agreement between employers and their employees. View full article (PDF).

The Most Important Ten Minutes: The Oregon Court of Appeals Creates a Private Right of Action for Missed or Short Rest Breaks

The Oregon Court of Appeals has decided that an employee has a private right of action against an employer for unpaid wages if the employer fails to provide paid rest breaks to the employee as required by Oregon law. However, the employee does not have a private right of action against the employer for failure to provide unpaid meal breaks.

In Gafur v. Legacy Good Samaritan Hospital and Medical Center, 213 Or.App. 343, 161 P.3d 319 (2007), the plaintiffs brought claims against their employer for regular and penalty wages based on allegations that the employer failed to provide paid rest breaks and unpaid meal breaks. The plaintiffs also alleged a breach of contract claim based on the theory that mandatory meal and rest breaks were inherent in their employment contract. View full article (PDF).

New Washington Domestic Partnership Legislation Affects Providers

As widely reported in the media, on July 22, 2007, legislation providing certain unmarried couples with many of the same rights and benefits held by married couples became effective in Washington. SSB 5336 created a state domestic partnership registry in the office of the Secretary of State, as well as amending a variety of existing laws to include state registered domestic partners in their coverage.

MS Issues QandA as Final Guidance on Requirements of Deficit Reduction Act

As most providers know by now, the federal Deficit Reduction Act (“Act”) requires covered providers to establish written policies aimed at educating employees about false claims and whistleblower protections. Section 6032 of the Act applies to all entities that receive or bill at least $5 million in Medicaid funds. Compliance with the employee education provisions of the Act is a prerequisite to receiving Medicaid funds. The Act went into effect on January 1, 2007. View full article (PDF).

Modification To The Federal Rules Of Civil Procedure

The United States Supreme Court recently approved proposed amendments to Rules 16, 26, 33, 34, 37 and 45 of the Federal Rules of Civil Procedure. On December 1, 2006, these modified rules pertaining to electronic discovery will become enforceable in federal courts. The new Federal Rules impose strict and broad requirements on civil litigants with regard to disclosure and production of electronic documents. The significant changes to these Rules address requirements for document retention or production of electronic data. View full article (PDF).

Deficit Reduction Act Deadline Is Rapidly Approaching – Providers Must Be Ready With Employee Education About False Claims and Whistleblower Protections

The federal government wants your employees to know more about false claims and whistleblower protections — and is requiring you to tell them. On January 1, 2007, key provisions of the Deficit Reduction Act (“DRA”) will go into effect, and employers should start preparing now. View full article (PDF).

Advertising for Senior Housing and Compliance with the Fair Housing Act

America’s senior population has already begun to grow. That increase will accelerate dramatically in 2011 when the generation born between 1946 and 1964 (Baby Boomers) begins to turn 65. View full article (PDF).

This article appeared in the September/October 2006 issue of The Quality Provider.

Medical Malpractice Reform Adds Additional Mandatory Requirements to Plaintiffs, Defendants and Counsel

Pursuant to legislation enacted in the last legislative session (effective June 7, 2006), potential claimants in any civil action against a health care provider for personal injuries based upon alleged professional negligence face more stringent filing requirements, which could help curb baseless claims. RCW 7.70 et seq (regarding actions for injuries arising from health care), which was amended by this new law, includes nursing homes in its definition of a health care provider, and many of the new provisions of this law will affect personal injury/wrongful death cases filed against nursing homes. View full article (PDF).

Medicaid Law Changes Require Evidence of Citizenship

Beginning July 1, 2006, U.S. citizens seeking Medicaid benefits will have to provide evidence of citizenship. The new requirement to verify documentation when applying for Medicaid is intended to prevent illegal immigrants from declaring they are citizens and obtaining Medicaid benefits. View full article (PDF).

CMS Provides Sample “Under Arrangement” Contracts for SNFs

Recently, the Centers for Medicare and Medicaid Services (CMS) issued sample contracts regarding the arrangement between a Skilled Nursing Facility (SNF) and a supplier for services subject to consolidated billing. Under previous guidelines, SNFs were allowed to enter into an arrangement as long as the arrangement specified the services that were supplied and how the SNF paid the supplier for these services. These guidelines remain in place. The recently issued sample contracts are not a CMS requirement. Rather, the arrangement can be entered into through a formal contract or other kinds of documents. CMS does not require SNFs, suppliers, and practitioners to use these sample documents or follow their exact language. Rather, CMS is providing these documents to offer direction. View full article (PDF).

New “Open Letter” to Providers From the Inspector General Encourages Increased Use of Self Disclosure Protocol For Stark and Kickback Violations

On April 24, 2006, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) released “An Open Letter to Health Care Providers” regarding a new initiative to encourage self-reporting by providers. The focus of the OIG is to watchdog governmental health programs and operations by “protecting them against fraud, waste, and abuse.” The OIG’s duties are carried out through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG speaks, long term care facilities should listen. View full article (PDF).

New Court Decision Presents Challenges to Defending Neglect Cases Under Washington’s Vulnerable Adult Statute

Washington’s Abuse of Vulnerable Adult Statute (“VAS”), RCW 74.34 et seq., was first passed in 1984. It was amended in 1999 and the legislature specifically announced its intent to protect “vulnerable adults.” “Vulnerable adults” include those age 60 and older who are unable to care for themselves due to physical, mental and/or a functional limitation. The VAS is intended as an “additional remedy” to those already available under Washington law, such as a medical malpractice suit. Thus, the VAS creates an independent cause of action for the “abuse,” “neglect,” “abandonment” and/or “financial exploitation” of a “vulnerable adult.” View full article (PDF).

Office of Inspector General Releases 2006 Work Plan: What Nursing Homes Should Know

On November 16, 2005, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) released its 2006 Work Plan. The focus of the OIG is to watchdog governmental health programs and operations by “protecting them against fraud, waste, and abuse.” The OIG’s duties are carried out through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG speaks, nursing homes should listen. View full article (PDF).

What the Plaintiffs’ Bar Is Saying About Long Term Care and Senior Housing

Members of Lane Powell’s Long Term Care and Senior Housing practice group recently attended national seminars sponsored by both plaintiff and defense attorney associations. Somewhat surprisingly, there is an emerging degree of consensus between these opposite groups with respect to important litigation issues involving personal injury and wrongful death suits against both skilled nursing and assisted living facilities. View full article (PDF).

CMS Letter to SA Directors Provides Guidelines For Nursing Home Compliance With Federal Screening Requirements During the Hiring Process

On September 22, 2005, Centers for Medicare and Medicaid Services (“CMS”) issued a letter to State Survey Agency (“SA”) Directors asking them to remind all Medicare and Medicaid participating nursing homes of the federal requirements related to screening potential employees and checking with all appropriate nurse aide registries. View full article (PDF).

Nursing Home Litigation: Avoid Twelve Angry Jurors

Enormous jury verdicts against nursing homes for injury and death damages have become too numerous to blame on an isolated runaway jury or two. It’s interesting to note that some typical driving factors for large damage awards are missing from these cases. That is, things like lost earnings, life expectancy and extent of disability are not usually at issue with an elderly resident of a nursing home. View full article (PDF).

This article appeared in the September 2005 issue of Oregon Business Magazine in a special section titled, “Oregon Business Law Journal: Oregon attorneys offer legal advice for business leaders.”

CMS SNF/LTC Open Door Forum Alerts Providers to New Immunization Requirement and Possible Return of Therapy Caps

On August 30, 2005, a Skilled Nursing Facility/Long Term Care Open Door Forum was hosted by Centers for Medicare and Medicaid Services (“CMS”). CMS highlighted two issues of interest to Skilled Nursing Facility providers: the new immunization regulation and the possible return of therapy caps. View full article (PDF).

Skilled Nursing Facility Prospective Payment System Final Rule Mandates RUG Refinements

On August 4, 2005, the Centers for Medicare and Medicaid Services (“CMS”) released its final rule updating the Skilled Nursing Facility (“SNF”) Prospective Payment System (“PPS”) for fiscal year 2006. The final rule contains a number of policy changes that could affect future reimbursement rates. View full article (PDF).

How Seemingly Reasonable Precautions Sparked Decades Of Litigation Over The Use Of Siderails

The risks and benefits of side rails in acute care and long-term care settings continues to be the focus of considerable debate. A universally accepted tenant of this debate declares that the routine use of side rails resulted more from a fear of liability than from individual determinations of usefulness. View full article (PDF).

DSHS Recognizes the Validity of Arbitration Agreements with Long Term Care and Senior Housing Residents

The Department of Social and Health Services (“DSHS”) has finally recognized the validity of arbitration agreements in the context of long term care facility disputes. By letter to Washington State Representative Brendan Williams, Joyce Pashley Stockwell, Acting Director of Residential Care Services for DSHS, stated that long term care residents have “the same right as every citizen to establish contracts or arbitration agreements.” View full article (PDF).

Nonprofits Under Fire – Lawsuits attacking tax-exempt status pose risk for many health care facilities

Jennifer Beyerlein, Barb Duffy, and Charles Huber explain the risks facing the tax-exempt status of many health care facilities in a health care law focus article titled, “Nonprofits Under Fire,” that was published in the March 14, 2005, edition of Legal Times. With the explosion of litigation against nonprofit health care facilities, the Long Term Care and Senior Housing group may be bracing for a new wave of litigation as elder care facilities are targeted. View full article (PDF).

Centers for Medicare and Medicaid Services Clarifies Reporting Requirements for Alleged Violations of Mistreatment, Neglect and Abuse, Including Injuries of Unknown Origin

In late December 2004, the Director for the Center for Medicaid and State Operations/Survey and Certification Group of the Centers for Medicare and Medicaid Services (“CMS”) issued a clarification of the reporting requirements for allegations of abuse and neglect. See S&C-05-09 Dec. 2004. This clarification was issued at the request of state survey agencies. CMS’s clarification applies only to nursing homes. However, because state survey agencies are inclined to apply a one-size-fits-all approach to issues pertaining to reporting of abuse and neglect, we expect that CMS’s recent clarification will impact all senior housing providers, not just nursing homes. View full article (PDF).

Long Term Care and Senior Housing Industry is on Plaintiff Attorneys’ Radar Screen

Over the past two years the number of long term care/senior housing claims/lawsuits in Washington and Oregon has significantly increased. The following briefly summarizes the factors behind these trends, the litigation strategies employed by plaintiffs’ counsel, and measures long term care/senior housing operators can take to avoid being swamped by the rising tides of litigation. View full article (PDF).

Washington’s Vulnerable Adult Statute

There are many reasons for the increase in jury awards in long term care cases. The population is aging. Jurors of the current generation are more likely to be elderly or have elderly parents. There is also probably an increasing “lottery” mentality among some jurors. However, there is no question that the Vulnerable Adult Statute is also playing a significant role in raising both jury awards and defense costs in long term care cases.  View full article (PDF).

Skilled Nursing Facility Consolidated Billing: Services Furnished Under an Arrangement With an Outside Entity

Whenever a skilled nursing facility resident receives a service from an outside supplier that is subject to the consolidated billing requirements of Medicare Part A, the Social Security Act requires the facility and the supplier to enter into an “arrangement.” CMS recently reminded facilities that these arrangements must be in the form of a written agreement to reimburse the outside entity for Medicare covered services subject to consolidated billing. Despite CMS’ attempt to provide clarification, the “under arrangement” provision remains largely misunderstood. View full article (PDF).

Feeding Assistants Class Action

To address the critical shortage of certified nursing assistants, the Department of Health and Human Services, Centers for Medicare andamp; Medicaid Services promulgated regulations effective 2003 that permit long-term care facilities to use paid feeding assistants to supplement services of certified nurses aides. Controversial at their inception, the regulations are now under official attack in the Residents Council of Washington et al. v. Thompson case, which was filed in the United States District Court for the Western District of Washington on July 30, 2004. This article covers the regulations and the pending litigation, which may impact the long-term care industry on a national level. View full article (PDF).

National Trends In Admission Contract Arbitration Agreement Enforcement

As long term care providers have suffered the weight of extraordinary increases in their insurance premiums and a trend toward larger jury verdicts, the providers and their insurers have investigated means of reducing the costs of managing risk and defending claims related to the care and services provided at their facilities. One such method is for a long term care provider to require its residents to sign an agreement that all disputes related to the services or professional care provided by the facility be subject to private arbitration rather than argue the claim in a court of law. This article does not endeavor to comment on the overall savings of arbitration versus trial, but simply looks to various courts’ interpretations of the enforceability of various arbitration clauses in the context of long term care. View full article (PDF).